Pagano v. Case W. Reserve Univ.

• Decision Date: 14 January 2021
• Docket Number: No. 108936,108936
• Citation: 166 N.E.3d 654
• Parties: Maria PAGANO, Plaintiff-Appellant, v. CASE WESTERN RESERVE UNIVERSITY, Defendant-Appellee.
• Court: Ohio Court of Appeals

166 N.E.3d 654

Maria PAGANO, Plaintiff-Appellant,

v.CASE WESTERN RESERVE UNIVERSITY, Defendant-Appellee.

No. 108936

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: January 14, 2021

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.:

I. INTRODUCTION

{¶ 1} Plaintiff-appellant, Dr. Maria Pagano ("Dr. Pagano"), appeals the trial court's grant of summary judgment in favor of former employer defendant-appellee Case Western Reserve University ("CWRU"). The lawsuit arises from CWRU's denial of Dr. Pagano's application for tenure and promotion within the CWRU School of Medicine ("SOM"). On December 18, 2017, Dr. Pagano sued CWRU for breach of contract, promissory estoppel, breach of implied contract, and breach of the implied covenant of good faith and fair dealing. At the close of discovery, CWRU moved for summary judgment.

{¶ 2} The trial court ruled in favor of CWRU on July 31, 2019. The court issued an opinion with its judgment entry. In granting summary judgment, the court noted that "Ohio Courts have been reluctant to intrude on tenure decisions" and that " ‘[a] court should intervene [in tenure decisions] only where an administration has acted fraudulently, in bad faith, abused its discretion, or where the candidate's constitutional rights have been infringed.’ " (R. 33, quoting Hall v. Ohio State Univ. College of Humanities , 2011-Ohio-6842, 2011 Ohio Misc. LEXIS 599 (Ohio Court of Claims) ([quoting] Gogate v. Ohio State Univ. , 42 Ohio App.3d 220, 225-26, 537 N.E.2d 690 (10th Dist.1987) ; and Bassett v. Cleveland State Univ. , Ohio Court of Claims No. 1982-02100 (1982)).)

{¶ 3} The court characterized Dr. Pagano's complaint as an attempt to " ‘circumvent well established case law regarding tenure decisions by asserting that the contract was breached because CWRU failed to develop ‘clear and comprehensive’ criteria for each tenure track.’ " R. 33. The court found Dr. Pagano's attempt "unavailing" and concluded that "nothing in the evidence presented shows that CWRU acted fraudulently, in bad faith, abused its discretion, or infringed on Plaintiff's constitutional rights." R. 33.

{¶ 4} Dr. Pagano appeals, raising one assignment of error:

The trial court erred in granting the appellee's motion for summary judgment because disputed material issues of fact exist regarding the appellee's contractual obligations toward the appellant.

{¶ 5} Courts usually do not interfere in tenure decisions, and we do not question CWRU's assessment of Dr. Pagano's qualifications. Rather, Dr. Pagano has alleged specific contractual violations that occurred during CWRU's tenure review process and provided evidence that the procedural violations prejudiced her. For the reasons that follow, we find that genuine issues of material fact exist regarding Dr. Pagano's breach of contract claim and therefore reverse the trial court's judgment and remand for further proceedings.

II. STANDARD OF REVIEW

{¶ 6} Our standard of review for summary judgment appeals is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

[W]e use the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The party moving for summary judgment bears the initial burden of apprising the trial court of the basis of its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on an essential element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Once the moving party meets its burden, the burden shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue of material fact exists. Id. To satisfy this burden, the nonmoving party must submit evidentiary materials showing a genuine dispute over material facts. PNC Bank, N.A. v. Bhandari , 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477, 2013 WL 3055918, ¶ 9.

Lillie & Holderman v. Dimora , 8th Dist. Cuyahoga No. 100989, 2015-Ohio-301, 2015 WL 405952, ¶ 9.

{¶ 7} The following elements must be established to grant summary judgment:

The motion for summary judgment may only be granted when the following are established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in its favor. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978) ; Civ.R. 56(C).

Id.

{¶ 8} We, as the reviewing court, evaluate the record in a light most favorable to Dr. Pagano, the nonmoving party. Saunders v. McFaul , 71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990). Any "doubts must be resolved in favor of the nonmoving party." Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

III. BACKGROUND

A. The Parties

{¶ 9} Dr. Pagano's extensive curriculum vitae includes a Ph.D. in human development and social policy from Northwestern University, master's degrees in psychology and biostatistics from Harvard University and CWRU, respectively, and bachelor's degrees in child development and art history from Tufts University. Before working at CWRU, she was an assistant professor at Brown University, Director of the Information Science Unit in Brown University's Department of Psychiatry, and a training faculty member of Brown University's Center for Alcohol and Addiction Studies from 2001-2005. CWRU recruited and hired Dr. Pagano in 2005 as an assistant tenure-track professor in CWRU's School of Medicine's ("SOM'S") department of psychiatry ("Department"). In 2010, CWRU promoted Dr. Pagano to associate professor.

{¶ 10} CWRU is a renowned nonprofit institute of higher education located in Cleveland, Ohio. The university is comprised of multiple undergraduate, graduate, and six professional schools.

B. Governing Documents

{¶ 11} The parties agree that promotion and tenure at CWRU are governed by the CWRU Faculty Handbook ("Handbook"), the SOM Bylaws ("Bylaws"), and the documents appended to each, including the "2015-2016: CWRU School of Medicine Promotion and Tenure Guidelines, Process, and Procedures for Nominating Full-Time Faculty for Promotion to Associate Professor or Professor and/or Award of Tenure," revised February 23, 2015 ("Guidelines").

C. Tenure Tracks

{¶ 12} A tenure appointment affords the recipient the right to retain a position until retirement. (Bylaws, Article 5.4.) The Bylaws require tenure consideration to occur "no later than in the ninth year after the date of initial appointment at the rank of assistant professor or higher." (Bylaws, Article 5.5.) If tenure is not awarded, "further appointment is normally restricted to one year." (Bylaws, Article 5.5.)

{¶ 13} Research-focused tenure candidates, like Dr. Pagano, must identify themselves as either an independent scientist, a team scientist, or as a hybrid of both when they apply for tenure. (Guidelines, Section III.) Thus, the SOM offers three tracks for tenure: the traditional track of independent scientific research, and the more recent options of team scientist and hybrid scientist. Dr. Pagano transferred from the independent research track to the hybrid track and states that the transfer was at the SOM's suggestion.

{¶ 14} While the governing documents describe "independent" and "team" scientists, there is no such detailed description of "hybrid" scientists, other than as some type of combination of independent and team. The Guidelines provide:

A typical independent scientist is one who has been awarded or aspires to be awarded federal, foundation, or other extramural funding as Principal Investigator with the greater portion of their research program, publications, and national reputation resting on work derived from research projects for which they have been the major driver. A typical example would be a principal investigator with extramural support awarded through a competitive peer-reviewed process from a federal (e.g., NIH R01, P[rincipal] I[nvestigator] on a major component of a program project, VA Merit award) or foundation source who publishes results as first or senior author along with graduate students and other junior scientists.

Typical team scientists are those for whom the greater portion of their research accomplishments, publications, and national reputation rest on original, creative, indispensable, and unique contributions made either a) in conjunction with a group of other scientists, or b) with a changing series of groups of other scientists. A team scientist may play the same or different roles within each team. A successful team scientist will be able to document national recognition for the research area, approach, technique or theme that characterizes his or her work through such means as study section memberships, invited presentations, editorial positions on boards of peer review journals, national awards for such work, etc.

A significant portion of a candidate's contributions may be made both as an independent and a team scientist, in which case the candidate should identify himself or herself as of both types.

(Guidelines, Section III.)

D. Tenure and Promotion Criteria

{¶ 15} The Handbook requires CWRU to set forth specific obligations and accomplishments necessary to obtain promotion and tenure. (Handbook, Chapter 3, Part One, Article I, Section F(3)-(4).) Generally, "[t]enure is awarded to a faculty member only when the university foresees for him or her continuing fulfillment of the qualifications" of:

(a) an expert knowledge of his or her academic field and a commitment to continuing development of this competence; (b) a dedication to effective teaching; (c) a commitment to a continuing program of research or other advanced creative activity or, where more appropriate to

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